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Where Restaurants Plead Their Case

Michael Della Croce, a bar owner, waits to learn the results of his case at the city health department’s tribunal. Representatives of the food and drinking establishments can spend an entire day waiting their turn.Credit
Marcus Yam/The New York Times

New York’s restaurants sprawl across a vast territory, from the pristine precincts of the multicourse tasting menu to the gritty backwaters of the takeout joint. But there is one grim corner where they all come together: the health department tribunal, a little-publicized court system that metes out penalties for violations of the city sanitary code.

It has been there for years, in a nondescript government office in Lower Manhattan where more than a dozen administrative law judges escort their charges into cramped rooms and hear them wrangle over infractions, in a ritual reminiscent of visiting the principal’s office.

But in the weeks since the city adopted a new system requiring restaurants to post large, brightly colored letter grades rating their cleanliness and safety, the tribunal has become a high-stakes food court of last resort where hundreds of restaurant owners and their representatives trudge each day to defend what they say are their very livelihoods.

Whether from Dunkin’ Donuts or Le Bernardin, whose case was called last week, they stand in line behind two strips of grimy gray tape on the floor to check in at a reception desk. Then they wait, sometimes all day, to defend their kitchens, many in hopes of nudging a humiliating C up to a bearable B, or turning that middle-of-the-class B into a gold-star A.

At one recent hearing, the judge asked Jay Gavrilov, director of dining services at a residence for the elderly in Battery Park City, if he had anything to say. He responded with an impassioned speech: he was not seeking to reduce his fines or dismiss the violations that had earned him a B.

“My purpose here is to try to get an A to put up,” he said plaintively, “for the well-being and mental well-being of my 80-to-105-year-old residents.”

It is too early to measure how the new grading system, which took effect in July, will change how the court functions. But many of those who have spent time there over the years, battling the bureaucracy or quietly fuming in the waiting room, say the traffic and emotions have never been higher.

“You’ve got to get here really early — this place has turned into a circus, a moneymaking circus,” Nicky Perry, who owns the West Village restaurants Tea and Sympathy and A Salt and Battery, said around 8:30 one morning in the office at 66 John Street, just after it opened. The 124 seats around her filled quickly.

Photo

Settling cases at the payment center. The traffic at the tribunal has intensified so much that the Department of Health and Mental Hygiene has been looking for ways to speed the process.Credit
Marcus Yam/The New York Times

“They should have a picture of Bloomberg on the walls going like that,” Ms. Perry added, rubbing her hands together in mock glee.

The snarl at the tribunal has intensified so much that the Department of Health and Mental Hygiene has been casting about for ways to speed the process, including adding hearing rooms and encouraging restaurants to accept settlements in place of hearings. But with the new rating system, said Dan Lehman, the department’s deputy commissioner of finance and planning, fewer restaurants are choosing that option because there is “more at stake than just a fine now — there’s a letter grade.”

“Our goal would be that they’re out there managing their restaurants,” Mr. Lehman said. “They’re not spending their time sitting at our tribunal.”

For now, however, that is precisely what they are doing. The throng in the waiting room kills time by trading war stories about the tribunal’s inconsistencies — Ms. Perry said that one year she was fined for having an ice-cream scoop in water and another year for not having it in water — and seemingly clueless judges.

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The tribunal is a great leveler, funneling the city’s finest restaurants through the same glass doors as its most humble.

On Oct. 4, it was Le Bernardin’s turn to huddle with the masses. In its first inspection under the new system, in August, the Midtown Manhattan restaurant, among the city’s most praised and expensive, received a reputation-bruising 32 points — enough for a C — but managed to pull off an A in its follow-up inspection about two weeks later. (If a restaurant fails to receive an A, 13 violation points or fewer, on its first inspection, it does not receive a grade until at least one other inspection is made.)

David J. Mancini, Le Bernardin’s managing director, waited four hours to contest his infractions and deliver a lengthy critique of the inspection system. But the judge, Mark Fant, limited him to the details of the violations.

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Tyrone Persaud, far right, a restaurant consultant, talks with Ignacio Flores at the health department court. Mr. Persaud was offering his services to restaurant owners navigating the system.Credit
Marcus Yam/The New York Times

“To move from a C to an A in two weeks — there’s no consistency,” Mr. Mancini protested.

“I can appreciate that,” the judge responded perfunctorily, then moved to close the proceedings.

As the judges stepped into the waiting room and called the cases, the restaurant representatives — owners, workers or consultants — followed, bearing sheepish smiles and paperwork, to sit at a desk before the judge and swear to tell the truth.

Although the health department recommends a minimum fine for each type of violation depending on its severity, the judges generally have discretion to set their own penalties or throw out violations. Often, a restaurant concedes the inspector’s finding but explains that it has been corrected, or that it is not as severe as charged, is based on a faulty assumption, or should be considered part of another violation.

Robert Callahan, a consultant, persuaded Judge Wayne Greene to dismiss a violation issued to Biddy’s Pub on East 91st Street for a missing thermometer and an ice machine with mildew buildup, testifying that the thermometer was simply in the wrong place and that the machine was used to chill only sealed bottles, not cocktails. That lowered the pub’s 33-point score to 25, enough to qualify for a B.

The judges tend to move through the cases swiftly, but take time to school respondents in how to improve their sanitary practices. Judge Sylvia J. Feinman spoke with near-grandmotherly concern to Hon Cho Yuen, a representative for New General Tso’s Restaurant in the Bronx.

The inspector had noted 15 pounds of raw broccoli on a refrigerator shelf beneath raw chicken; Mr. Yuen explained that the vegetables had been delivered while the staff was too busy to move them. The judge suggested dedicating a special shelf to the vegetables “so that they’re not exposed to contamination by raw meats.”

But even tribunal officials acknowledge that a hearing amounts to a roll of the dice.

For Mr. Gavrilov, the food-service director at the residence for the elderly, a long and contentious appearance before Judge Nancy Tumelty yielded mixed results. He won some concessions, but was unable to persuade her that the 17 fruit flies noted by the inspector were really no more than 5.

“You could easily count the same one twice,” he said, “because they are flies — they’re flying in front of your face.” Susan Rosenfeld, a lawyer for the health department, countered that inspectors were specially trained in vermin, “how to detect them, how to know them.”

In the end, Mr. Gavrilov whittled his score from 19 to 14 — just one point shy of the A he had sought.

A version of this article appears in print on October 14, 2010, on Page A32 of the New York edition with the headline: Where Fine-Dining Temples and Takeout Joints Trudge to Defend Themselves. Order Reprints|Today's Paper|Subscribe